I have submitted 14 amendments. However, we do not have enough time, so they will be tabled on Report Stage and we will revert to them. I must mention them on Committee Stage. One relates to this section.
Protected Disclosures Bill 2013: Committee Stage
The Senator raised this point.
I am just saying this in case anyone believes that we did not table amendments. The Minister will recall a commitment under the programme for Government on two-week gaps between Stages. In this case, we have not even had a week. It creates pressures. There are not many amendments, but they are useful. I suggest that there would have been more had the Government stuck to the programme for Government.
The Senator should have objected last week.
Senator Byrne without interruption.
The standard procedure is to identify the following Tuesday, for example, but that was not done. I could have objected to the Order of Business, but I did not. Quite frankly, there is no other business on the agenda for this afternoon.
One of my Report Stage amendments - they are on record in the Bills Office - is to include a two-year review in addition to the five-year review under section 2. Does the Minister see merit in this proposal? While I understand that reviews are not conducted on a daily basis and a balance must be achieved, would a shorter review period ending before the Government left office be worthwhile? I raise this point in the context of supports for this legislation. A shorter review period would allow us to determine how the legislation is working and whether anything has happened. The five-year review would still be conducted, as provided for in this legislation.
Section 2 provides for a review of the operation of the Act no later than five years after its commencement. I gave some consideration to the appropriate timeline. Five years sounds long, but I wanted there to be sufficient experience of the Act. There is no point in having a review when there has not been sufficient cross-sectoral usage within and without the public sector for us to make a useful analysis. However, I have an open mind on the issue. Two years is too short a period. The section reads: "not later than the end of the period of 5 years". Both sides might consider that before Report Stage next week.
I apologise to the Cathaoirleach for standing before he invited me to speak. I will table my amendment on Report Stage, but I suggest that the Minister reconsider this issue, given the danger involved. I do not suggest that it would be due to him. I hope that the situation is changing in the public service, but reviews have been conducted previously. Sometimes, they involved joint committees and were made at the very end of a five-year period, leading to rushed jobs. For this reason, I suggest that there be two separate reports on facts. This could give some impetus to the process. We do not want to burden the public service or the Minister with this proposal, but it would be important to know whether the legislation was being used.
Legislation of this type is sometimes criticised for its complexity. That criticism could be mildly applied to this Bill. One would want to know quickly whether the legislation is working or is too complex, whether the code of practice is working and whether people are able to understand the legislation. It might be better to know the answers before five years have passed.
One of the changes that we are introducing under the Oireachtas reform proposal is to make periodic reviews of legislation. Sometimes, we do not see how enacted legislation impacts. Parts of some Acts have never been commenced. Even legislators often do not know this.
I have no difficulty with the notion of a review of this Bill, but I want such a review to be meaningful. A sufficient body of work will be necessary, as this legislation will be difficult to bed down. As the Senator knows, the Labour Relations Commission, LRC, has begun the work of drafting guidelines. We need to disseminate those guidelines to workers and employers.
We want to talk to both sides of industry as well as the public service to ensure there is knowledge of the Act. We want to see how it impacts subsequently and is followed through. It will take a while to see how the reporting mechanisms are followed through, so I do not want to put in a timeline that is of little use to us. If the review points to the need for it, we will bring in further legislative change. We need a meaningful, impactful review and I am open to the wisdom of the Houses as to the most useful effective timeline involved.
Is section 2 agreed to?
Yes, subject to coming back on Report Stage.
While I am not objecting to the section, I wish to comment on it. There is an issue concerning the position of volunteers who blow the whistle, particularly in charitable organisations. They are not in the same position as employees as regards monetary compensation, but they may well be important whistleblowers in such an organisation. I have submitted an amendment on them concerning the section on definitions. I fully expect the Minister to say that one would need to go much further within the legislation because it is a lot more complex than simply adding them to the definition of a worker. However, I wonder whether provision could be made to include volunteers in charitable organisations.
I understand the Senator is considering submitting an amendment on Report Stage. We have examined this area in the context of best international practice, including the ground-breaking legislation in the UK which examined the definition of "worker". In the UK and across all the jurisdictions we have looked at, there is a strong consensus among experts that whistleblower protection should not extend beyond the basis of the workplace relationship. The reasons for this conclusion have been examined in the regulatory impact analysis that I published in tandem with the Bill. I will not go through it now but perhaps Senators could read it before Report Stage to see why we are following the international consensus on this matter.
Many volunteers participate on the basis of bodies, such as the Leader companies, which disburse and disseminate EU and State funds. They are volunteers but there are State funds involved. One would hope that no one would need to act as a whistleblower in such circumstances, but if State moneys are involved, perhaps the Minister could review the matter.
For clarification, we are inserting a legal mechanism to protect whistleblowers. Anybody who sees wrongdoing should be able to blow the whistle. The idea is that those in the workplace should not be vulnerable to retribution. If one is not in the workplace, however, it does not mean that one should not be a whistleblower. Volunteers cannot be fired so they do not need the protection of labour laws. That is the international position.
While one cannot be fired as a volunteer, one can be blacklisted or given the cold shoulder. If one were an employee, one could take a case for constructive or unfair dismissal. It is an issue. I will reflect on what the Minister has said before I come back on Report Stage. There are many major charitable organisations, including Leader companies, which have voluntary directors. They might be pushed out. I also wonder about the position of elected representatives or officeholders who may be blacklisted because they blow the whistle.
Again, they are not in the same type of employer-employee relationship and the difficulties in that regard which is addressed in the legislation, but they can, if they speak out of both sides of their mouths, be subjected to blacklisting. For example, even though this legislation follows on from the recommendations of the Mahon tribunal, it would be of no practical benefit to the county councillor who gave evidence of bribery at that tribunal, except in so far as it introduces a broader culture of whistleblowing. One of the amendments I have tabled for Report Stage proposes the inclusion in this legislation of officeholders of State under the Constitution and Members of the Dáil and Seanad. While these are not people who would be seeking compensation in terms of an infringement of the Employment Acts they are people who might well be looking for protection within a party or council structure. Councillors who blow the whistle in respect of wrongdoing could be blacklisted by officials and suffer appalling consequences for doing so. While their relationship is not an employer-employee relationship it is very similar. While I may, perhaps, be broadening this out too much, the only hope such people would have is that this legislation will change the culture and thereby help them.
On Second Stage we discussed at length the main aim of the suite of reform legislation to change the culture. One cannot craft legislation to suit every individual case. This legislation is, by and large, to protect the whistleblower in the workplace. It defines the workplace, the redress available to whistleblowers and protections against penalisation being visited upon them. There is a separate array of occasions outside of the workplace when proper whistleblowing should occur. As the Deputy said, this could relate to information one receives as a public representative, of which I have some experience. I know personally how much on the hazard one can be in terms of the High Court and Supreme Court challenges taken against me for trying to out allegations of corruption in Donegal and the €0.5 million in legal fees in that regard, which I did not have the wherewithal to pay. I understand that. However, that is outside this process. It is not possible to formulate a whistleblowing regime to protect against a person being on the hazard for doing the right thing. I believe most people, certainly those in public life, be that at council or Oireachtas level, will take that risk.
Where it would impact is in the case of a person in the planning or other office in the council who became aware of wrongdoing and outed it, which would leave him or her very vulnerable. This regime is designed to protect such person in that regard. I will reflect on the matter for Report Stage. If the Deputy reads the regulatory impact assessment in terms of international best practice and the proposal expounded in this legislation, he will find it is robust.
I move amendment No. 1:
In page 9, subsection (3), between lines 25 and 26, to insert the following:
“(h) that undue influence is being exercised by a public official including but not limited to the exercise of such influence in relation to the administration of justice and the proper functioning of state organs,”.
This amendment relates to the definition of wrongdoing and suggests the inclusion of an additional type of wrongdoing for the purposes of the Act. The Minister will be aware that section 5(3)(f) refers to wrongdoing as including the unlawful or improper use of funds or resources of a public body. However, subsection (3) does not include in the definition of wrongdoing undue influence by a public official, particularly in relation to the administration of justice and the proper functioning of State organs. To highlight that the legislation is being introduced to improve accountability and transparency for all public officials, such a provision should be included. In this case, a public official should include Members of the Oireachtas and all civil and public servants. The amendment also suggests that the current restriction to misuse of public funds is too limiting and should be expanded. This is important in terms of sending out a message about accountability and transparency. Furthermore it is proposed in the OECD toolkit on whistleblower protection that protected disclosures should be defined to include an abuse of authority.
The addition to the definition of "undue influence" would be in keeping with the idea of combating corruption, as outlined in the White Paper produced by the Department of Justice and Equality on white collar crime, for which the Department used Transparency International's definition. The latter organisation was very helpful in the development of the legislation and the Minister was very receptive to its input, as were his officials. According to Transparency International's definition, corruption is the misuse of public entrusted power for private gain. In that regard, this Bill could be linked to relevant Department of Justice and Equality legislation. I have proposed the amendment for this reason.
I thank the Senator and her colleagues for proposing the amendment, which would insert a new relevant wrongdoing that could be reported upon for the purposes of making protected disclosure. The amendment would add to the list of relevant wrongdoings set out under section 5(3). Having carefully considered the wording of the proposed amendment, I am satisfied that the issue of the exercise of undue influence by public officials, which the Senator wishes to crystallise and focus on, is already more than adequately covered by the current definition of a relevant wrongdoing set out in section 5(3).
Given the wide categories set out in the Bill, I have taken the view that the amendment is not necessary. One could craft and specify many other possible types of wrongdoing in the legislation. Having spoken at great length to my officials, I have decided that we will have crafted all-encompassing terms, rather than narrow or specific terms. We could all come up with half a dozen types of wrongdoing that could be specified in the Bill. However, the more one specifies, the more one weakens. We need an overarching concept that will ensure that when these matters are tested in the courts, the overarching definitions are sufficiently robust to capture them. The advice I have been given is that the more one specifies, the more it is open to argue in the courts that a particular category must be excluded on the basis that it is not specifically mentioned in the Bill. The general approach, therefore, is to have broad definitions to capture as much wrongdoing as possible. I am advised by the Attorney General that the issue of undue influence by public officials is specifically captured in the definition in section 5(3).
The Minister stated that, while an abuse of an authority by a public official in relation to a disclosure issue is not specifically spelled out in the definition of relevant wrongdoings, in the event that it emerged that such an abuse may have taken place, he is confident that this would be protected in the legislation and that, moreover, he has received the advice of the Attorney General in this regard. Is that correct?
Senator Zappone has touched on an important omission. Matters that do not reach the level of criminality are not necessarily covered by the definition in section 5(3) and criminality may be absent in the case of undue influence being exercised by a public official. What is the position regarding breaches of competition law or Articles 101 and 102 of the EU treaty? While there is specific provision on this matter in the Competition Act, a good faith defence is available in that disclosure under the Act must be done in good faith. Such disclosures do not always reach the standard of criminal activity and could well be civil breaches. The same applies with regard to the Companies Act. Certain serious breaches of the Act are not offences under section 5(3)(a). They may constitute lack of compliance with a legal obligation but fall into the category of civil offences or breaches. I refer specifically to the Competition Act and Articles 101 and 102 of the EU treaties, the analogous provisions in Europe. If, for example, two major multinational companies were found to have entered into a price fixing arrangement, Ireland would not have a role in the matter, as such matters are dealt with at European level where whistleblowing protection is in place. Under the definition in section 5(3), protection will not be afforded to a person in Ireland who blows the whistle on major price fixing but does not do so in good faith.
It is not an offence, it is arguable whether there is an issue of failure of legal obligations, it is not a miscarriage of justice, it is not a health and safety matter or a matter of the environment, it is not the misuse of funds of a public body or an act of omission of a public body and it is not the destruction of information. I believe there is a category of wrongdoing not covered by the legislation and Senator Zappone's amendment touches on that.
My Report Stage amendments cover the Competition Acts and Articles 101 and 102 of the Treaty on the Functioning of the European Union, which relate to price-fixing, reputed dominance at European level and breaches of the Companies Act which do not reach the level of criminality. I wonder whether that has been considered. There could be serious wrongdoing. A person could be disbarred from being a director for serious wrongdoing but that person may not be guilty of an offence and I wonder whether that has been considered. I will be tabling my amendments, especially those dealing with the Competition Acts and the Companies Act. They are already in place but I will be tabling them on Report Stage.
I have indicated already that I want the best international practice, which is to have a robust all-encompassing definition. The more we narrow it down, the weaker we make it. We will debate the matter on Report Stage in terms of the Companies Acts but I am advised that breaches of the Companies Acts are encompassed in the definition. That was the advice of the Attorney General to me. There is reference in the legislation to an offence that has been, is being or is likely to be committed. It does not only stipulate that an offence has been committed. There is a list of other issues that do not only relate to an offence, but to health issues, miscarriages of justice, environmental issues and so on.
There is a reference to specification of specific and particular kinds. We could be as specific as we like and we could all think of a dozen more slots or categories to put into it. We could have endless categories but if we have not ticked all the boxes and left out something then someone gets away. Therefore, it is better to craft it in an open way that encompasses any potential wrongdoing. I am advised that the matrix of categories laid out in subsection (3) is designed to capture all wrongdoing, in line with international best practice and will meet the requirements set out in the case made by Senators Zappone and Byrne.
We are only suggesting one more, not several more specifics.
The point is Senator Zappone provided one specific, but I could give her five more.
Is that so?
Yes. Senator Byrne has just given Senator Zappone a further example in respect of the Companies Act. The more we seek to specify, the more often we suggest that such and such is not included. I am telling the House that the advice I have from the Attorney General upon looking at the amendment that Senator Zappone has submitted is that it is encompassed and there is no need to repeat it ar eagla na h-eagla. It is done.
A breach of Article 101 of the EU treaty which relates to price-fixing may or may not be an offence under Irish law. Perhaps the Minister could reflect on that. It may not be an offence if it is dealt with exclusively at European level. That is only one that I can think of. I realise the 2002 Act criminalises anti-competitive activity but if someone is fined at European level, he or she is certainly not guilty of an offence in Ireland for that. I contend there is a category of civil wrongs not covered by the legislation and I call on the Minister and his officials to reflect on that.
The issue Senator Zappone raised is important and relates to undue influence being exercised by a public official. We saw that in the Mahon tribunal in respect of one particular public official. I have no wish to refer to individuals but there were many offences recorded in that tribunal. An act may not reach the level of criminality in question. I accept what the Minister is saying, in that if he sets out so many of them then he would be excluding more, and he is right in saying that. However, he argues against his point by virtue of the fact that he has eight categories already in the legislation. I am suggesting that perhaps one more could possibly cover the issues that myself and Senator Zappone have raised.
I do not for one second wish to imply that the Minister had anything to do with it, but in my early days in the country when the Minister, Deputy Howlin, was the Minister for Health, I started blowing whistles about deficiencies in cancer services at a time when they were clearly, palpably, measurably, by any objective standard and by a distance the worst in Europe. This was not the fault of the Minister, Deputy Howlin. He inherited them that way and they have subsequently improved. Anyway, at the time it struck me that a rather concentrated level of intimidation was brought to bear on me when I blew these whistles in public arenas, having tried to go through the normal channels first. An inquiry was made about whether my employment in St. Vincent's Hospital could be terminated.
Thankfully for me, I had passed that one year probation stage in the old contract beyond which one really could only be terminated pretty much for moral turpitude. Prior to that stage, one was there pretty much at the discretion of the employing authority. However, it also was brought to my attention that senior officials in the Department of Health at the time were making it known in the hospital that they wanted me to shut up. As I am unsure whether anyone actually broke any laws, I am somewhat sympathetic to the concerns being raised by Senators Zappone and Byrne about the generality of the whistleblower protection in the absence of a level of criminality. I wish to bring that point to the Minister's attention.
While the Minister is present, I wish to reassure him on another point. He blew a whistle himself lately and I wish to assure him that he will have whistleblower protection from Senators for his statement that any money saved from the possible abolition of the Seanad will be redeployed to the new committee system that will be put in place in Dáil Éireann and the Oireachtas. I am only guessing that he must have become subject to a certain amount of internal intimidation as a result of that very honest disclosure and whistleblowing and I assure him of the support of the Members of this House. I would welcome his stating a fourth time, under Seanad privilege, what he has stated twice publicly and once to me, which is this is the intended use of the disposition of the saved funds. I thank the Minister.
While I note the last intervention has absolutely nothing to do with the legislation, I commend the Senator on making his party political broadcast on the issue. What I said was it would be my personal wish that any resources saved were used for that purpose. However, that will not be my decision entirely, although I will have a say in it. It is a matter for the people, in their absolute wisdom, to make a determination on the Constitution. While we all have views on it, as a parliamentarian of 30 years and having considered best international practice, I believe that a single strong Chamber, properly and fully resourced, is a much better way to go for this country and that is what I have been arguing. However, I believe it will need to be resourced and I do not believe the committee system in the Houses currently is adequately resourced.
That is not relevant to the amendment.
I am sure the Acting Chairman discovered relevance when I was arguing my point of view and did not discover it when the good Senator was arguing the contrary point of view. Anyway, I acknowledge the Chair is perfectly balanced and I will move back to the specific amendment. While I will reflect further on the points made, I have the assurance of the Attorney General. Obviously, my officials have spoken to the Office of the Attorney General and the Office of the Parliamentary Counsel to the Government and the legislation is crafted in a way that will capture what is required to be captured here. However, I will reflect further on whether there is a need to be more specific.
Senator Zappone, how stands the amendment?
I thank the Minister for that gracious response. While I will have a conversation with my colleague across the floor and we may do something later, I will not press the amendment now.
Can the Minister explain the reason trade union officials are included in respect of the issue of obtaining legal advice? Is it that the trade union official will be the conduit of that advice or does this pertain not to legal advice but to the general advice one might get from one's shop steward or whatever?
While this section is straightforward, it is important and I am glad it has been raised by the Senator. It provides that a disclosure is made in accordance with this section if it is made by the worker in the course of obtaining legal advice from a barrister, a solicitor or a trade union official. This is because trade union officials often advise on labour law in particular and that would be quite normal. Given the implications and lengthy complexity that can arise in seeking to make a protected disclosure, it is important that the worker can benefit from such advice prior to deciding on any future course of action. Failure to make such a provision potentially could militate against workers seeking the appropriate advice prior to adopting one of the other disclosure channels that are available under the legislation the Government hopes to put in place.
I move amendment No. 2:
In page 12, before section 11, but in Part 3, to insert the following new section:
11.—(1) In this section—
“terms and conditions” means terms and conditions no less favourable than those that would have been applicable had the employee not been dismissed and include seniority, pension and other rights that the period prior to the dismissal should be regarded as continuous;
“reinstatement” has the same meaning as in the Unfair Dismissals Acts.
(2) An Interim Relief Order for continuation of the contract of employment shall include the amount which is to be paid to the employee in respect of each pay period falling between the date of dismissal and the final determination or settlement of the complaint.
(3) An employee, having made a protected disclosure, who is, or is about to be, unfairly dismissed, may apply for interim relief, including reinstatement pending their case being finally determined.
(4) An employee, or trade union on their behalf, who presents a complaint to the Rights Commissioners or the Employment Appeals Tribunal that he has been unfairly dismissed and—
(a) the reason for the dismissal relates wholly or mainly to their making a protected disclosure, or
(b) the reason relates wholly or mainly to their being a witness or giving evidence as part of an investigation on foot of a protected disclosure,
may apply to the Circuit Court for Interim Relief.
(5) The application for Interim Relief must be made before the end of the seven days immediately following the effective date of the termination (whether before, on or after that date).
(6) (a) The Circuit Court on application of a request for Interim Relief may, if the unfair dismissal complaint has an arguable case, require the employer to do, or cease to do, as the case may be, anything that the Court considers necessary and shall ask the employer whether he is willing pending the final determination or settlement of the complaint by the Employment Appeals Tribunal, the Labour Court, or the final appeal to the Circuit Court under the Unfair Dismissals Acts whichever applies—
(i) to reinstate the employee (that is to treat him in all respects as if he had not been dismissed),
(ii) if not, to reinstate him in another job on terms and conditions not less favourable than those which would have been applicable to him if he had not been dismissed.
(b) If the employer states that he is willing to reinstate the employee, pending the final determination of the case the Circuit Court shall make an Order to that effect.
(c) If the employer states that he is willing to reinstate the employee in another job, and specifies the terms and conditions on which he is willing to do so the Circuit Court shall ask the employee whether he is willing to accept the reinstatement on those terms and conditions.
(d) If the employee is willing to accept the reinstatement on those conditions, the Circuit Court shall make an order to that effect.
(e) If the employee is not willing to accept the job on those terms and conditions—
(i) where the Circuit Court is of the opinion that the refusal is reasonable, the Circuit Court shall make an order for the continuation of the contract of employment until the case is finally determined,
(ii) otherwise the Circuit Court shall make no order.
(7) If on the hearing of an application for interim relief the employer—
(a) fails to attend,
(b) states he is unwilling to reinstate the employee in accordance with this section,
the Circuit Court shall make an Order for the continuation of the employee’s contract pending the final determination of the case.
(8) At any time between the making of an order under this Act and the final determination or settlement of the complaint the employer or the employee can apply for the revocation of the Order on the ground of relevant change of circumstances since making the Order.
(9) No costs shall be awarded to the parties in respect of the application for Interim Relief under this Act.
(10) The existence of an Interim Relief Order under this Act does not prevent a complaint of unfair dismissal being heard under the Unfair Dismissals Acts.”.
This amendment goes back to the Second Stage debate on this legislation on seeking an amendment to provide for injunctive relief to be granted to prevent the unfair dismissal of an employee following his or her making a protected disclosure in accordance with the legislation.
The purpose of interim relief provisions is to ensure that employees be free of retaliation when making allegations and to protect disclosures. Similar to the Planning and Development Act 2000, the proposal is to provide a statutory basis for interim relief orders that would operate on the same principles of the commonly termed "planning injunction" whereby relief is available. Under the Planning and Development Act 2000 interim orders may be made, pending the case being heard. This proposal is based on the principle that, pending the complaint of unfair dismissal being finally determined by the Employment Appeals Tribunal at the Labour Court, a form of injunctive interim relief either preventing the dismissal or reinstating the employee, after the act of dismissal, would be available from the Circuit Court. That court already has extensive experience hearing appeals of unfair dismissal cases. Therefore, there would be no-brainer inclination towards curial deference when determining where an arguable case lies.
Furthermore, the granting of injunctive relief is not alien to industrial relations law. For example, section 19 of the Industrial Relations Act 1990 deals with circumstances under which the court may, or may not, grant an injunction to the employer, which is in line with the Campus Oil guidelines, as the unfair dismissal will have a serious and detrimental consequence for the employee contrary to the public interest purpose of the legislation.
Awards and damages are not a sufficient remedy for an unfairly dismissed employee, especially as unfair dismissal cases take an average of two years to be heard currently. A two-year period without pay will affect employees. It will affect their ability to pay a mortgage, for example, or meet any other borrowing requirements. This is combined with the ongoing negative impact on career and the damage to their name and reputation caused by the whiff of sulphur surrounding a dismissal. They all combine in such a way that the existing system of redress, in the sole form of compensation for financial loss, is unsuitable and does not provide adequate protection. The core principle of justice delayed is justice denied applies in this instance. The balance of convenience should be to preserve the employee in his or her job and to protect him or her from unfair dismissal when reporting a wrongdoing. I know that the Minister said that he would examine the matter on Second Stage and I am interested in hearing his comments.
Do I have a seconder for the amendment?
I second the amendment.
I thank the Senator and her colleagues for tabling this important amendment. I referenced the matter on Second Stage. I note that the amendment is long and detailed and it is obvious that a lot of thought has gone into its drafting. In order to be helpful to the House I shall set out the provenance of interim relief in the whole area of whistleblowing legislation.
The potential for granting interim relief is an important protection available to whistleblowers who claim that they have been dismissed for whistleblowing under section 9 of the groundbreaking UK whistleblowing protection legislation, the Public Interest Disclosure Act 1988. In the UK if an employment tribunal concludes that an employee is likely to win his or her case at a full hearing it, that is the Employment Tribunal of the UK, can make an order pro tem that employees be re-employed or that the employment is deemed to continue so the employee will continue to receive salary.
The experience in the UK is that the granting of this protection in a whistleblowing case is relatively rare. The employment tribunal must be satisfied that there is more than a reasonable expectation that the case will succeed at a full hearing of the tribunal. Moreover, the tribunal's assessment must be made in circumstances that the tribunal does not seek to prejudge the outcome of issues which are not properly set out before it at that stage, before the full hearing adduces all of the evidence and all of the matters are fully tested and heard.
Claims for interim relief would be expected to arise only in a very small minority of cases. Granting of interim relief is likely to be the exception rather than the rule. Notwithstanding, I think there might be cases where it is justified.
As I said on Second Stage, Ireland is not like the UK inasmuch as the judicial capacity of our labour relations bodies is circumscribed by the Constitution. The issue must therefore be assessed in the context of the legal and constitutional structures for employment rights that are operated in this State.
My Department has been in detailed consultation with the Attorney General on this issue. I am well disposed to examining if we can find some way in which interim relief could be provided, but there are a number of constitutional hurdles. One is that to prejudge a case before all evidence is adduced is very difficult in our jurisdiction, because under the Constitution the issue of bias arises in the same tribunal coming to a conclusion subsequently. There are other issues in terms of costs that might arise that would be determined not by a court but by a tribunal set up under law. On the basis of the consultations my Department has had, and is continuing to have, with the Office of the Attorney General and the Department of Jobs, Enterprise and Innovation, which has overall responsibility for employment rights and employment legislation, the legal feasibility of doing what I would like to do is being fully examined. With the permission of the Senator and the House, I seek the opportunity to continue that examination to see if I can find a solution before the Bill progresses further in the House.
In view of what the Minister said about the legal feasibility being examined, I will not press the amendment.
Amendment No. 3 is out of order as it involves a potential charge on the Exchequer.
Can I ask a question about that? The question is not necessarily related to cost.
The Senator can raise it when discussing the section.
There is a reference in the new subsection (2B)(b), as inserted by section 11(e), to the relevance of the motivation of the person making the disclosure. However, section 5(7) reads: "The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure." One of the reasons we tabled the amendment is that these provisions are apparently contradictory. Perhaps the Minister would comment on that.
I am sorry the amendment is out of order.
We will try again.
However, I will talk to it in discussing the section. I will outline the reason the section is in the Bill. Again, it relates to the experience in the United Kingdom and I mentioned it in my speech on Second Stage. It is about the good faith test. There was a good faith test in the original UK legislation. It was expected that somebody who was whistleblowing would act in good faith. However, I have taken that out of this Bill because there could be instances where wrongdoing is outed not for the best of reasons. That does not make the wrongdoing any less real, or outing it any less important or valuable. Section 11(e) mirrors the compromise that was arrived at within the British system, whereby in dealing with cases where the good faith test was not met, it was determined that if the motivation was less than wholesome, the compensation available should be less. Bluntly, I am uncomfortable with that. Had the amendment been in order, I would have indicated that I will reflect upon it further.
There is much argument internationally about this. We are all guided by our experience but I know that in the Donegal case, with which I am very familiar, one of the breakthroughs was motivated by less than wholesome motivation. It was a marriage break-up issue. As a result of the marriage break-up, one of the spouses determined to blow the whistle on the other spouse. The fact that spouse was doing things which were not only wrong but criminal was exposed as a result. Did that make the wrongdoing, or the exposing of it, any less important? There are purists who would say "Yes" and that there should be a higher threshold of protection to one if one's motivation is more wholesome.
The Senator is right in that section 5(7) states: "The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure." That is true, therefore it categorises a protected disclosure regardless of motivation but whether the degree of compensation should always be the same, irrespective of motivation, is a matter for debate. On balance, I am minded to agree with Senator Zappone on that and will reflect further between now and Report Stage. I hope I have not been too convoluted.
No. I will take it that the Minister will reflect further. As the Minister is aware, in the UK legislation, it is a 25% reduction and not a 50% one where bad faith is proven. The UK took out the good faith standard and put in a bad faith standard, which we do not have in our legislation. It is something to consider.
I will put down an amendment on Report Stage. We are creating a new tort in this section, which is positive in the context of the Bill. However, it is relatively unusual for legislation to create new torts - new rights of action in tort. Those of us who studied law will look back on ancient common law where, traditionally, torts are created. Without looking at the demerits or merits of this particular right of action in tort, there is probably an opportunity to have some mechanism to limit compensation.
Again, not to try to take away from the import of the Bill, when we create new tort, we should tread carefully because tort has been allowed to run away with itself over the years and this is a new one. I do not know the last time the Oireachtas created a new tort action rather than just replace an old one but we should tread carefully.
I will tread carefully and will look forward to the Report Stage debate.
Amendments Nos. 4 to 6, inclusive, are related and may be discussed together by agreement.
I move amendment No. 4:
In page 15, lines 15 to 19, to delete subsection (1) and substitute the following:
"(1) A person to whom a protected disclosure is made, and any person to whom a protected disclosure is referred in the performance of that person's duties, shall take reasonable and available measures to ensure that they do not disclose any information that might identify the person by whom the protected disclosure was made.".
The protection of the identity of the whistleblower has been strengthened since the heads of the Bill were published. The disclosure of the identity is actionable but we think this could still benefit from a stronger level of protection to one of sanction. In addition, the current level of protection could be quite weak in practice because it requires all reasonable steps to be taken to protect identity which, in itself, is not particularly strong as a standard. Amendment No. 4, therefore, seeks to strengthen the standard of protection.
Furthermore, in this section there is no breach of identity protection if the person to whom the protective disclosure is made or referred reasonably believes that the person by whom the protected disclosure was made does not object to the disclosure of any such information. That seems to be an odd and loosely drawn exception and certainly does not attach to the section a sense of importance of protecting the whistleblower's identity. Identification of the whistleblower could have serious consequences for their future employment, among other things, and should be strongly protected in the legislation.
That leads me to amendment No. 5 in which we suggest the deletion of subsection (2)(a). We do not see the rationale for it. Apologies if I dealt with two amendments.
The Senator's first amendment, No. 4, proposes to replace "all reasonable steps" in section 16(1) with the new phrase "reasonable and available measures". Replacing "all reasonable steps", which is what I want, with "reasonable and available steps" actually weakens it because we will have to determine the steps that were available to the person. I believe that is a weakening of the provision in simple English and that the phrase I have included is stronger.
Amendment No. 5 proposes the deletion of subsection (2)(a) in section 16, which permits the identification of a disclosure in the case that a recipient of a protected disclosure reasonably believes that the person by whom the disclosure was made could not object to being identified. There will be many cases where the whistleblower does not have any difficulty with being identified and if that is self-evident and manifest, it might help the advancement of the case. If the person is content to say: "I work for this company and we are pumping out toxic waste into the river, which I think is a disgrace, and I am willing to say that because I was the one who did it", that would help in the investigation. There is no pressure on the person but where somebody is willing, and it often is the case that somebody is willing to do that, I do not see that that should not be permitted.
If we look at section 16(2), there are cases where disclosure may be justified for the effective investigation of the relevant wrongdoing, the prevention of serious risk to the security of the State, public health, public safety or the environment, or the prevention of crime or the prosecution of a criminal offence. I have personal experience in that these matters were tested in our highest courts where innocence at stake is an issue. It is important, to protect somebody from serious harm, that the identity might be disclosed. It is crafted in the best way to protect workers in the round but also in cases where serious harm either to the environment, the security of the State or the carrying out of natural justice, or any justice matter, it is important to ensure the legislation in section 16 is crafted in a fair and reasonable way.
Amendment No. 6 proposes to criminalise the intentional disclosure of information identifying a person who has made a protected disclosure. That is a step up. The issue of criminalisation was dealt with in some detail in the regulatory impact assessment I published with the Bill; I am sure the Senator has had a chance to read that. In the regulatory impact assessment the case was made that the potential for a worker to be criminalised in the legislation presents a very significant impediment against reporting. Since one of the primary underlining objectives of the legislation is to encourage workers to come forward and disclose concerns of wrongdoing, any potential, however remote, that an action of such whistleblowing would result in criminal prosecution is undesirable. In addition, I am advised by the Attorney General that any potential criminalisation of a worker, in the absence of equivalent criminalisation of an employer, is unlikely to be perceived as securing balance in the treatment of employer and employee under the legislation.
In view of the objective to encourage disclosures of wrongdoing and taking into account the uneven treatment in the matter of criminalisation both within and across the span of sectoral statutes, the proposed legislation does not therefore include any provision for the criminalisation of workers or employers. We should not go down that route.
Will the Minister comment on what is meant by "actionable" in section 16? Obviously, we are trying to step up the protection of the whistleblower by increasing the level of penalty. Comparative or international best practice would be to have guiding principles. Our legislation must provide for no disclosure without consent and should provide for anonymous disclosure. The group of amendments, and amendment No. 6 in particular, are offered in that spirit.
Section 16(3) states: "A failure to comply with subsection (1) is actionable by the person by whom the protected disclosure was made if that person suffers any loss by reason of the failure to comply." "Actionable" is meant in the normal way of law in that somebody can take legal means to respond to such an action.
A number of conditions in section 17 on the disclosure of information relate to Members of Dáil Éireann. Is there any particular reason Members of Seanad Éireann are not entitled to receive that information? They may be in a position to do so.
That is a fair question. I will be honest and tell Members that there was great resistance to section 17 from many quarters. However, there must be a channel that elected representatives of the people should be able to receive information and be, in certain circumstances, a port of call. It was determined that I could include Members of the Dáil in the legislation. Including a wider cohort might have been a bridge too far simply because of the numbers of Members of the Seanad involved.
I will table an amendment on Report Stage. The Minister needs to think again. The numbers involved are limited. It is not like the UK experience in the House of Lords in which there are an unlimited number of appointees. The Seanad has a limited number of people. Many of us have significant levels of public trust, whether that is across particular sectors as is the case for Senators Zappone and van Turnhout, or whether in particular geographic areas, as is the case for other Members. There is an issue that the Minister might consider on Report Stage.
I do not have any personal resistance to the issue. In crafting a pool of people to whom people can give information, a unique representative role is entrusted to Members of Dáil Éireann because they are elected directly by the people. They are also, under the Constitution, the authority that holds the Executive to account. There are unique elements to the Dáil that do not accrue to Members of the Seanad, but we will debate these matters on Report Stage.
I move amendment No. 7:
In page 19, between lines 44 and 45, to insert the following subsections:
"(3) Every public body shall adopt guidelines pursuant to the operation of this Act and ensure that they are provided to all workers employed by the public body and shall ensure that all workers are aware of this Act.
(4) The Minister shall prepare and publish, within twelve months of the commencement of this Act a Code of Practice, employer and worker guidelines and information on the operation of this Act, setting out the aims and principles of the Act, and shall provide such guidelines to every public body, following consultation with the Standards in Public Office Commission.".
Last week, I spoke about the creation of guidelines in light of the legislation's complexity and the importance of a duty on employers to raise awareness about the legislation.
The Minister has requested that the Labour Relations Commission draw up a code of practice. We discussed this matter to some degree on Second Stage. Amendment No. 7 suggests that there should be a stipulation in the legislation with regard to guidelines and awareness raising in order that these requirements should be placed above the level of regulation. We believe that the quality of such guidelines should come under independent scrutiny.
Essentially, we are of the view that the amendment will strengthen the legislation. In the context of its research on whistleblower protection, the OECD has indicated that, as a priority for legislation, awareness raising should be regularly undertaken in order to encourage the reporting of wrongdoing and corruption and that existing information on the protection of whistleblowers should be disseminated. The OECD also states that it is important that whistleblower protection should be supported through effective awareness-raising, communication and training efforts and that communicating to public or private sector employees their rights and obligations when exposing wrongdoing is essential. It is for these reasons we have tabled amendment No. 7.
The amendment proposes the insertion of additional subsections into section 21. The latter requires that every public body shall establish and maintain procedures for dealing with protected disclosures. There are two elements to the proposed new subjection (3) put forward by the Senators. The first would require the adoption by public bodies of guidelines pursuant to the operation of the Act and the second is a requirement that all workers in public bodies should be made aware of the protected disclosures legislation. As it stands, in section 21(2) the Bill provides that public bodies will be required to provide their workers with written information regarding the procedures they are required to establish and maintain under section 21(1). In the context of the dissemination of such rules and procedures in common practice within the Irish public service - I do not envisage any difficulty with the requirements being fully discharged in the latter - it is also anticipated that steps taken by public bodies to provide workers with information of the nature envisaged under section 21(2) will, of necessity, refer to the protected disclosures legislation. It should also be noted that the requirement to inform the employees of public bodies of those written procedures also extends to former employees.
In terms of advising workers generally of the existence of the legislation and as I have already indicated, my Department is currently giving detailed consideration to the most appropriate and effective means of disseminating that information broadly across all workplaces once the legislation has been enacted. It is expected that the code of practice being developed by the Labour Relations Commission, in conjunction with employer and employee representatives, would provide a significant vehicle for the dissemination of such information.
The second part of the amendment would involve the insertion of a new subsection (4) into section 21. The proposal put forward envisages a role for the Standards in Public Office Commission in the preparation of guidelines relating to the operation of legislation. As previously indicated, the Minister for Jobs, Enterprise and Innovation has requested that the Labour Relations Commission prepare a code of practice in respect of the practical day-to-day operation of the legislation. I have had dealings with all sorts of public bodies. The Labour Relations Commission is the organisation best equipped - and obviously the most rational choice - to perform this task. With due respect to the Clerk of the Dáil, the Clerk of the Seanad, the Comptroller and Auditor General, the Ceann Comhairle and the Ombudsman, the Standards in Public Office Commission does not possess as well-defined a skill-set as the Labour Relations Commission in the context of doing this job. I am of the view that the Labour Relations Commission is better placed to take on the task.
I move amendment No. 8:
In page 20, before section 23, to insert the following new section:
“23.—(1) Not less than one year and every twelve months thereafter following the commencement of this Act, all public bodies shall prepare and submit a report to the Standards in Public Office Commission detailing the documents and activities undertaken pursuant to this Act, including, but not limited to—
(a) any and all relevant guidelines developed,
(b) any and all information and awareness conducted with employees,
(c) any and all disclosures made to the public body pursuant to this legislation and the action taken,
(d) any other matters as shall be requested by the Standards in Public Office Commission.
(2) Not more than eighteen months following the commencement of this Act and every twelve months thereafter, the Standards in Public Office Commission shall prepare a report for the Oireachtas that contains, inter alia—
(a) detailed information on the reports made to it under subsection (1),
(b) its assessment of any systemic issues identified as arising from these reports, bearing in mind the aims and principles,
(c) its assessment of the quality of and implementation of guidelines and awareness raising in relation to the Act,
(d) its proposals for any necessary amendments to the legislation or requirements for further regulations, if any.
(3) No information prepared and published in connection with this section shall contain information capable of identifying the person who made the protected disclosure.”.
Amendment No. 8 seeks an addition to the legislation. In light of the Minister's comments last week, we do not see this as an attempt to provide a monitor of those monitoring, rather it is an effort to include in legislation a way to monitor complaints across the board so that any systemic issues within or across public services are identified and to ensure that whistleblowers are not being victimised. Furthermore, we believe this could significantly assist with the review of the legislation following the five year period, on which the Minister had a discussion earlier with Senator Thomas Byrne. I agree that in some ways the time period is important. However, also important is how the review will be conducted. If there were measures in place as proposed in the context of amendment No. 8 this would facilitate the collection of information over the five years on which the review could be based, as distinct from looking back over four or five years and trying to collect that information.
In reference to the OECD, international best practice outlines that steps should be taken to evaluate the effectiveness of whistleblower protection laws and policies. The legislation as drafted provides, by and large, for a five year review. The amendment suggests that systematically collecting data and information over a period of time is a means of evaluating the effectiveness of the whistleblowing mechanism and that an independent public body could ensure systematic data collection regarding the number of cases, etc.. We believe the amendment proposed is in keeping with that particular approach.
Again, I do not agree with giving such an oversight role to the Standards in Public Office Commission. I believe it already has a huge variety of roles. We are also, in the context of the review of the Mahon report, looking at ethics legislation in the round. It is my intention to provide for the consolidation of ethics legislation before the end of this Dáil term. I am happy to discuss that in due course with members of the Seanad.
There is no analogous oversight role in the UK Public Interest Disclosures Act, which is regarded as the gold standard. I would prefer the notion of an Oireachtas role rather than reference to another body, which will then refer to the Oireachtas. I have indicated that I will reflect on the timeframe for the review of the legislation. A periodic review, reported to a committee of the House, might perhaps be the better way to go.
I was going to suggest to the Minister if he rejected the amendment that it should, perhaps, be provided that the Minister's Department would receive notification of all whistleblowing within the public bodies and that this should then be reported to an Oireachtas committee.
It could be reported to the Joint Committee on Public Service Oversight and Petitions.
I move amendment No. 9:
In page 5, line 6, after “THE” where it firstly occurs to insert the following:
“PROMOTION OF TRANSPARENCY AND ACCOUNTABILITY AND PREVENTION OF CORRUPTION THROUGH THE”.
I argued on Second Stage that the legislation must encourage people who have information in relation to wrongdoing to come forward. I know that the Minister agrees with this. I also suggested that the legislation could benefit from a statement of purpose of principle. Amendment No. 9 seeks to include such statement of purpose in the Title of the Bill. We believe this will assist in the public understanding of the aim of the legislation and in future judicial interpretation of any cases arising therefrom. The amendment seeks inclusion in the Long Title of "PROMOTION OF TRANSPARENCY AND ACCOUNTABILITY AND PREVENTION OF CORRUPTION THROUGH THE IMPLEMENTATION OF THE ACT."
I am grateful to Senator Zappone and her colleagues for tabling this amendment, which seeks an extension to the Long Title of the Bill. The new elements included in the amendment correspond closely to what is acknowledged as the fundamental objectives which I have set out for this legislation, namely, the promotion of openness, accountability and transparency and the prevention of corruption. These themes also strongly reflect my motivation in bringing forth this legislation. Explicitly referencing transparency and accountability in the Long Title may, I am advised, have the unintended affect of limiting the scope of the legislation. A broad range of wrongdoings are encompassed by the Bill. Public disclosure of certain wrongdoings would contribute to increased transparency and accountability. However, the primary purpose of the Bill is to promote disclosure for the purposes of having any wrongdoing investigated. The stepped disclosure regime put in place through this Bill facilitates external disclosure or disclosure to a regulator or Minister over and above the external disclosures into the public domain. It is not accurate to imply in the Long Title that the Bill is mainly aimed at prevention of corruption. That is just one of its aims, as there are many other forms of wrongdoing covered by the legislation.
I will try to put it in simpler terms. The Long Title of the Bill is understood in the legal profession and by the courts as setting the objectives of the Bill. There is only an amendment to the Long Title if there is an additionality proposed that is not an essential part of the Bill. As such, the Long Title has to be expanded to encompass that. Laudatory and supportive as I am of the proposition and concept, I am advised that the impact of what is proposed would be potentially a limiter on the full scope of the Bill. We do not want to do that.
I appreciate what the Minister said. The amendment was an effort on our part to provide more clarity in terms of the aim of the legislation. Am I correct in terms of the Minister's response, that it would result in a narrowing of the prevention of corruption? If, instead, we had suggested only the promotion of transparency and accountability would that have been acceptable or is it that the entirety of what is proposed narrows the scope of the legislation? While I take on board what the Minister said, the amendment seeks only to add some clarity to the Title, which is also important in judicial interpretation.
I welcome that. The working Title of this legislation from the time of conception, including when published by my party when in Opposition, was the whistleblowing Bill. It has now transformed into a much more banal Protected Disclosures Bill. I am afraid that is the way of the legal drafts people. Some people thought there was a negativity attached to the word "whistleblowing". I actually believe it is a positive. However, there we are. The Title of the legislation is the Protected Disclosures Bill 2013, which is in sync with norms. The Long Title has a legal function in defining the scope of the Bill, which I do not want to narrow. Although combating of corruption is an essential part of the objectives of the Bill, it is not its exclusive objective. Also, while the promotion of transparency is an essential part of the Bill, it is not an exclusive part of it. I will take another look at the issue between now and Report Stage. The Senator might also do so.
Okay. I will try to come up with something better.
When is it proposed to take Report Stage?
When is it proposed to sit again?
Ar leath uair tar éis a deich, maidin amárach.